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PETITIONER: ELIZABETH ANTONY

       Vs.

RESPONDENT: MICHEL CHARLES JOHN CHOWN LENGERA

DATE OF JUDGMENT12/04/1990

BENCH: REDDY, K. JAYACHANDRA (J) BENCH: REDDY, K. JAYACHANDRA (J) PANDIAN, S.R. (J)

CITATION:  1990 AIR 1576            1990 SCR  (2) 486  1990 SCC  (3) 333        JT 1990 (2)   183  1990 SCALE  (1)713

ACT:     Indian Succession Act,  1925: Sections 227, 263, 283-286     &  288:      Will--Probate--Letters  of   Administration--Caveat     opposing  probate of the Will--Caveatable interest based  on     Will and Gift--Copies of Gift Deed and Will not filed in the     Probate Court--Held caveatable interest not substantiated.         Will--Probate   Court--Findings   regarding       caveatable     interest effect of--Findings are relevant only to the extent     of granting of probate--Does not deprive of right to  invoke     jurisdiction   of   probate   court   for   revocation        of     probate----Granting  a probate is not deciding the  disputes     to  the      title  A probate granted can be  revoked  for  just     Cause.      HEADNOTE:

   The  respondent, claiming to be the beneficiary  to  the estate  of deceased ’M’ under a will executed by her,  filed an  application in the Sub Court for Letters of  Administra- tion. The petitioner lodged a caveat and opposed the probate of  the will on the ground that the will propounded  by  the respondent was a fictitious one intended to disentitle  ’Z’, daughter of ’M’, from claiming interest in the estate of her mother ’M’. The petitioner based her caveatable interest  on the basis of membership of the Trust, a gift-deed and a will executed  by  ’Z’  which was subsequently  probated  in  her favour.     The Subordinate Judge struck off the petitioner’s caveat on the ground that she has no caveatable interest.     The  petitioner filed a Civil Revision Petition  in  the High  Court and a Single Judge of the High  Court  confirmed the order of the Subordinate Judge.     In  the special leave to this Court it was contended  on behalf  of the petitioner that the courts below  have  erred (i)  in holding that she has no caveatable interest  and  in striking  off her caveat; (ii) that Z’s will in  her  favour which was subsequently probated established her interest  in the estate on the date of entering the caveat. 487 Dismissing the petition, this Court,     HELD: 1. By granting a probate the Court does not decide the disputes to the title. A probate granted can be  revoked under Section 263 of the Indian Succession Act, 1925. [492C]

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   1.1  In  the  instant case the  findings  regarding  the caveatable interest of the petitioner have a limited  effect and are relevant only to the extent of granting of  probate. But  they cannot deprive her right to invoke section 263  of the Act. [492D]     2.  The order of the Trial Court shows  that  admittedly neither  the  original nor a copy of the will said  to  have been  executed  by ’Z’ was filed.  Likewise  the  registered gift-deed  or a copy thereof was not filed. It is also  evi- dent that the Trust has come to an end and the same was  not in existence. The Trial Court has considered both the  docu- mentary  and  oral evidence in this regard and  has  rightly held  that the petitioner has no existing benefit  from  the trust.  Accordingly, it cannot be held that  the  petitioner has caveatable interest. [490F-G; 491C]     3.  In  the  instant case it is not  known  whether  the citations  were issued to all the persons interested  before the grant of the probate. The probate was also granted  when the special leave petition was pending in this Court yet the respondent  had  no notice about this  probate  proceedings. Under these circumstances it is not expedient to acknowledge this probate proceeding and re-open the matter. [491 G-H] Nabin Chandra Guha v. Nibaren Chandra Biswas and Ors., AIR 1932  Cal.  734; Gourishankar Chattoraj  v.  Smt.  Satyabati Debi,  AIR  1931 Cal. 470; Shanti Devi  Aggarwala  v.  Kusum Kumari  Sarkar & Ors., AIR 1972 Orissa, 178 and Narayan  Sah v. Smt. Devaki, AIR 1978 Patna 220, referred to.

JUDGMENT:

   CIVIL APPELLATE JURISDICTION: S.L.P. (Civil) No. 8896 of 1985.     From  the  Judgment and Order dated 18.12. 1984  of  the Madras  High  Court in Civil Revision Petition No.  5539  of 1983. WITH C.M.P. No. 28592 of 1988. 488     R.F. Nariman, J.P. Pathak, M.B. Shivraj and P.H.  Parekh for the Petitioner.     T.S.  Krishnamurthy  Iyer and Mrs. S.  Dikshit  for  the Respondent. The Judgment of the Court was delivered by     K.  JAYACHANDRA REDDY, J. We have heard both  the  sides and the matter is being disposed of at the admission stage.     This petition is directed against the order of a learned Single  Judge of the Madras High Court confirming the  order passed by the Subordinate Judge, Nilgiris. The matter arises under the Indian Succession Act, 1925 (’Act’ for short)  and the facts that give rise to the petition are as follows:     The  testatrix Mary Aline Browne was the wife of  Herbet Evander  Browne who was the eldest son of one  John  Browne. The testatrix had a daughter of the name of Zoe Enid  Browne and she died on 8.10.1977. The respondent claiming to be the beneficiary  to the estate of Mary Aline Browne who died  on 28.3.1972  under the terms of a will said to have been  exe- cuted by her on 12.3. 1962 filed an application for  letters of Administration with a copy of the will annexed in the Sub Court,  Nilgiris.  The same is numbered as O.S.  No.  23  of 1980. Alongwith the application the respondent also filed an affidavit  of an attestor of the Will. In  that  proceeding, the  petitioner and her deceased husband lodged a caveat  on the  ground that the said Mary Aline Browne did not  execute any  will  and the will propounded by the respondent  was  a

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fictitious  and forged one, intended to disentitle Zoe  Enid Browne, daughter of the testatrix from claiming interest  in the  estate of her mother. The petitioner also claimed  that Zoe  Enid  Browne executed a will dated 23.6.1975 in  favour of the petitioner and that she also executed a gift-deed  in her  favour.  The  petitioner also claimed that  she  was  a trustee  of John Browne Trust and that therefore, the  peti- tioner  has caveatable interest. Thus they opposed the  pro- bate  of the will. Before the Sub-Court,  several  documents were  filed.  The  respondent herein  contested  the  caveat stating  that the petitioner herein has no interest  in  the estate.  The learned Subordinate Judge held that  the  peti- tioner  is  not in any manner related either to  Mary  Aline Browne  or Zoe Enid Browne. The learned Single Judge of  the High Court in an elaborate order having considered the rival contentions  dismissed the Civil Revision  Petition  holding that the 489 petitioner cannot claim to be a person who has a  caveatable interest in the estate of the deceased testatrix Mary  Aline Browne.  We  are told that the will  has  subsequently  been probated and the letters of Administration have been  grant- ed.     The  learned counsel for the petitioner  contended  that both  the courts below have erred in holding that the  peti- tioner has no caveatable interest. It is submitted that  the petitioner  is  executor  and  legatee  of  the  will  dated 23.6.1975 executed by Miss Zoe Enid Browne daughter of  Mrs. Mary  Aline  Browne and that Miss Zoe has  also  executed  a registered  gift-deed  dated  29.3.1974 in  respect  of  the second  item of the estate and that the petitioner was  also appointed  a trustee of John Browne Trust on  11.6.1975  and therefore,  in  law the petitioner has an  interest  in  the property  which is the subject-matter of the will  and  thus have caveatable interest.     Under  Section  283 of the Act, the  District  Judge  or District Delegate may, if he thinks proper, issue  citations calling  upon all persons claiming to have any  interest  in the  estate of the deceased to come and see the  proceedings before  the grant of probate or letters  of  administration. Section  284  provides for lodging caveat against  grant  of probate  or  administration. Section 285 lays down  that  no proceeding  shall  be  taken on a petition  for  probate  or letters  of administration after a caveat against the  grant thereof has been entered until the notice has been given  to the caveator. Section 286 deals with the power of a District Delegate  and lays down that he shall not grant  probate  or letters  of  administration in any case in  which  there  is "contention"  as  to  the grant, or in  which  it  otherwise appears  to him that probate or letters  of  administration, ought  not  to be granted in this Court. Under  Section  288 where  there  is contention or where the  District  Delegate thinks  that probate or letters of administration should  be refused,  the documents shall be returned to the  applicant. In  the instant case the Sub-Judge comes within the  meaning of  the  District  Delegate and the  necessary  powers  were conferred on him by a notification which is not in  dispute. According to the learned counsel the petitioner duly  lodged a  caveat  against the grant of probate and  that  both  the courts  below  have not properly appreciated the  effect  of such a contention and erred in striking off the petitioner’s caveat.     In  Nabin  Chandra Guha v. Nibaran  Chandra  Biswas  and Ors., AIR 1932 Calcutta 734, the Division Bench held that  a person who has a real interest in the estate which is or  is

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likely to be prejudicially 490 affected  or adversely affected by the will can  oppose  the grant of probate or letters of administration. In Gourishan- kar Chattoraj v. Smt. Satyabati Debi, AIR 1931 Calcutta 470, it  is held that the petitioner therein who was  related  to the deceased through a common ancestor, can be said to  have interest in opposing the application for probate. In  Shanti Devi  Aggarwalla  v. Kusum Kumari Sarkar &  Ors.,  AIR  1972 Orissa  178, Justice Ranganath Misra, as he then  was,  held that the vendor legatee is entitled to enter caveat and  the purchaser  having stepped into the shoes of vendor  is  also entitled to enter the caveat. In Narayan Sah v. Smt. Davaki, AIR 1978 Patna 220, considering the locus standi of a person to  oppose  grant, it is held that  any  interest,  however, slight and even a bare possibility of an interest is  suffi- cient  to  entitle  a person to enter caveat  in  a  probate proceeding.     Relying  on  these decisions the learned  counsel  urged that  the  petitioner in the instant  case  has  substantial interest in the estate. The learned counsel for the respond- ent  did not dispute the legal position. He,  however,  con- tended  that  there was absolutely no  material  before  the Courts  below  to substantiate the alleged interest  of  the petitioner in the estate. It is submitted that the so-called will  said  to have been executed by Miss Zoe  Enid  Browne, daughter  of  Mrs.  Mary Aline Browne has  not  been  filed. Likewise,  the gift-deed also was not filed. Coming  to  the trust of John Browne it is submitted that the trust does not exist  and  got extinguished. The learned  counsel  for  the respondent  further submitted that except  mentioning  these three aspects in a bare manner no other material was  placed before the Court. Having gone through both the orders we are reclined to agree with the learned counsel for the  respond- ent  that  the petitioner did not establish  her  caveatable interest.  We  have perused the entire order  of  the  trial court in this context. Admittedly neither the original nor a copy  of  the will said to have been executed  by  Zoe  Enid Browne,  was  filed. Now coming to the trust, it is  in  the evidence of P.W. 1 that John Browne Trust has come to an end in March, 1972 and the same was not in existence. The  trial court has considered both the documentary and oral  evidence in this regard and has rightly held that the petitioner  has no existing benefit from the trust. Likewise the  registered gift-deed  or  a copy of it has not been filed.  Before  the learned Single Judge of the High Court also same contentions were  put forward. The learned Judge observed that from  the objections  filed by the caveator she desires the  Court  in the probate proceedings to uphold her title on the  strength of a gift-deed and the Trust deed. It is observed: "Equally, the petitioner has not placed before the Court 491 the  will dated 23.6. 1975 stated to have been  executed  by Zoe Enid Browne to establish that under the will dated 12.3. 1962 stated to have been executed by Mary Aline Browne  some interest  given  to  the petitioner  under  the  will  dated 23.6.1975 of Zoe Enid Browne, is liable to be in any  manner affected or otherwise displaced, by the grant of letters  of administration in respect of the will dated 12.3.1962 stated to have been executed by Mary Aline Browne." Accordingly  the learned Judge held that the petitioner  has not established that she has a caveatable interest  justify- ing  her opposition to the probate proceedings for grant  of letters of administration. In this state of affairs, we  are unable to agree with the learned counsel that the petitioner

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has caveatable interest.     Learned  counsel, however, submitted that the will  exe- cuted  by  Zoe  Enid Browne on 23.6.1975 in  favour  of  the petitioner though not filed but was subsequently probated in the  year 1989 and the fact that probate is granted  can  be taken  into  consideration  by this Court  as  a  subsequent happening,  as the appeal before this Court, is only  a  re- hearing  or  the  continuation of the  matter.  Reliance  is placed on Section 227 of the Act which reads thus: "Effect  of Probate--Probate of a will when  granted  estab- lishes the will from the death of the testator, and  renders valid all intermediate acts of the executor as such." It  is  submitted that since the will executed by  Zoe  Enid Browne  in favour of the petitioner is probated it  must  be deemed that it was existing since the death of the testatrix namely Miss. Zoe Enid Browne and that validates all interme- diary acts. According to the learned counsel, the effect  of such  a  probate is that the petitioner’s  interest  in  the estate gets established even on the date of entering caveat. We are unable to see any force in this submission. The  said probate,  admittedly,  took place in a court in  the  Madras City.  We do not know whether the citations were  issued  to all the persons interested. This probate also admittedly was granted when the special leave petition was pending in  this Court  yet the respondent had no notice about  this  probate proceeding. Under these circumstances, exercising our juris- diction under Article 136 we do not see that it is expedient to  acknowledge  this  probate proceeding  and  re-open  the matter. 492     Lastly  an attempt was made to show that  the  Sub-Court has  no  jurisdiction  but we find that  there  a  necessary notification  issued by the High Court conferring powers  on the  Sub Court. We see no force in any one of these  submis- sions.     The learned counsel, however, lastly submitted that  the petitioner  inspite  of having substantial interest  in  the estate  is losing her right, to prove that the alleged  will by Miss Zoe Enid Browne is not a genuine one and that it  is a  fictitious  one.  We must point out that  by  granting  a probate,  the  court  is not deciding the  disputes  to  the title.  Even  with regard to a probate granted,  it  can  be revoked as provided under Section 263 of the Act in any  one of the cases mentioned therein. But the learned counsel  for the  petitioner submits that the findings of the  Sub  Court and  the High Court regarding the caveatable  interest  will come  in the petitioner’s way in seeking revocation  of  the grant  of probate. It is needless to say that  the  findings regarding  the caveatable interest of the petitioner have  a limited effect and are relevant only to the extent of grant- ing of probate. But they cannot deprive his right, if he has any,  to  invoke Section 263 of the Act and it is  upto  the petitioner to satisfy the Court. With  these  observations,  the special  leave  petition  is dismissed. T.N.A.                                              Petition dismissed. 493